Shimshon v MLC Nominees Pty Ltd

Shimshon and others brought a proceeding against MLC Nominees Pty Ltd, the trustee of a superannuation fund, alleging breaches of both general law and statutory duties under the Superannuation Industry (Supervision) Act 1993 (Cth). The defendants claimed the proceeding was invalid because it concerned property subject to a trust, thereby falling outside the scope of a group proceeding under Part 4A of the Supreme Court Act 1986 (Vic) due to section 33B(2)(b)(ii). The Supreme Court was required to determine whether the proceeding was about property subject to a trust and, if so, whether it was excluded from Part 4A by the exclusionary provision.

The court examined the interpretation of the word 'concerning' in the exclusionary provision, concluding that a narrow construction was appropriate in line with the principles of statutory construction in Young v Murphy and Occidental Life Insurance Co of Australia Ltd v Bank of Melbourne. The court found that the proceeding did not concern property subject to a trust because the members had an equitable proprietary interest in the fund but no proprietary interest in specific assets. Their interest was described as 'prospective' rather than 'contingent'. The nature and extent of the available remedies for breach of duty by the trustee were also considered, drawing on authorities such as Finch v Telstra Super Pty Ltd and Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Beck.

Consequently, the court ruled that the proceeding was properly commenced as a group proceeding under Part 4A. The defendants’ application to strike out the proceeding was dismissed.